The
Unfair Roadblock:Despite
the fact that the majority of Americans do not support access to records
of arrests that never led to conviction for non-criminal justice purposes,
the overwhelming majority of states allow employers to deny employment
to applicants based solely on arrests that did not lead to conviction.
In addition, many housing authorities and other non-criminal justice agencies
also ask about and use arrests without convictions. Such practices flout
the notion that one is innocent until proven guilty, which is the bedrock
of our criminal justice system.

How
To Remove The Roadblock:States
should enact legislation that prohibits any inquiries about, consideration,
or use of information about arrests that did not lead to conviction by
employers, housing authorities and other non-law enforcement agencies.

This tool kit provides
materials and information that advocates can use to encourage state legislatures
to adopt those sensible reforms, including:

UNFAIRNESS
OF ALLOWING INQUIRIES INTO ARREST RECORDS & WHAT NEEDS TO BE CHANGED

Despite the fact that the
“presumption of innocence in favor of the accused is the undoubted
law, axiomatic and elementary, and its enforcement lies at the foundation
of the administration of our criminal law," most states do not have
legislation that prohibits the use of arrest records in employment, housing
and other decisions. In the absence of state legislation regulating such
access, employers may use this information as a bar to employment, and
housing authorities and landlords may deny housing. Thus, persons with
records of arrests that never led to conviction can be branded with the
same debilitating stigma that often harm people with past convictions,
though these individuals have not been convicted of a crime.

The lifetime stigmatization of an arrest record will often hinder individuals
from fully participating as active, tax-paying members of society. This
roadblock can affect literally millions of people, since as many as 64
million Americans have arrest records, many of which never resulted in
conviction.
States should enact legislation to prohibit employers, housing authorities
and anyone else other than law-enforcement agencies from inquiring about
or using arrests that never led to conviction.

•Thirty-six states allow
all employers and occupational licensing agencies to inquire about, consider
and make hiring decisions based on arrests that never led to a conviction.

• Ten states – California, Hawaii, Illinois, Massachusetts,
Michigan, New York, Ohio, Rhode Island, Utah, and Wisconsin – prohibit
public and private employers and occupational licensing agencies from
using arrests that never led to conviction.

• Pennsylvania allows employers to ask about arrests that never
led to conviction but prohibits them from utilizing that information when
making a hiring decision.

• Arkansas and New Mexico limit both public employers and occupational
licensing agencies from considering arrests. New Hampshire prohibits public
employers from considering arrests. However, Arkansas, New Mexico and
New Hampshire do not prohibit private employers from using arrests that
did not lead to conviction.

State
law predominately governs policies and legal standards that authorize
employers and other non-criminal justice related agencies to access to
criminal records. However, the Equal Employment Opportunity Commission
(EEOC), the federal agency responsible for enforcing Title VII, the federal
anti-discrimination statute that applies to private employers and state
and local governments, has promulgated guidelines as to how information
regarding arrests that never led to conviction should be utilized when
making employment decisions. Under the EEOC’s guidelines, employers
may not exclude people based upon arrests that did not lead to conviction
unless there is a business justification. To prove a “business justification”
an employer must show that the applicant engaged in the conduct for which
he or she was arrested, and that the conduct is both job-related and fairly
recent. The EEOC notes, however, that, a business justification can rarely
be demonstrated for blanket, across-the-board exclusions on the basis
of arrest records.

Coming soon, you will find more information in the Legal Action Center’s
toolkit on Title VII.

Advocates
should encourage state legislatures to enact legislation that prevents
public and private employers and licensing agencies from inquiring about,
considering, or using an applicant’s or employee’s record
of arrests that never led to conviction. The goal of legislation should
be to restore the accused to the status he or she occupied before the
arrest and/or prosecution that never led to conviction, including assurance
that such records will not be used against him or her in obtaining and
maintaining employment, licensing, or housing. In passing such laws, advocates
should promote legislation that clearly:

Prohibits
employers from inquiring about or using information arrests that never
led to conviction.

Employers should be prohibited
from making any inquiry about any arrest or criminal accusation
that resulted in a dismissal or was in any other way resolved
in favor of the individual.

The prohibition must also include
the use of arrest information, whether obtained directly from
the employee or from another source. A law that simply prohibits
employers from asking about arrests on employment applications
but allows employers to obtain access to and use such information
from an independent source is not nearly as effective in protecting
individuals against discrimination.

Covers
both private and public employers, as well as occupational licensing
agencies.

Covers
all aspects of employment.

Employers should be prohibited from
using information pertaining to arrests that never led to conviction
when making decisions concerning hiring, promotion, selection for
training or apprenticeship, segregation, discharge, discipline or
any other terms, conditions, or privileges of employment.

Makes
explicit the effect of a termination of a criminal action in favor
of the accused.

The law should
state explicitly that a person whose case is dismissed should
be restored to the status he or she occupied before the arrest.
Essentially, the individual should be viewed as a person who does
not have a criminal history and should not be disqualified from
receiving any benefit, employment, licensing, or housing.

Is
comprehensive and consistent.

Laws that govern the accessibility
and use of criminal history records including those that authorize
criminal record checks and sealing or expungement of arrest records
that did not lead to conviction, must be comprehensive and maintain
consistency in definition and intent.

New York State’s
has two model laws that explicitly provide protections to people with
records of arrests that did not lead to conviction. One law nullifies
the effect of a criminal record disposed of in favor of the accused and
the other offers additional protection by limiting the use and consideration
of these records by employers, licensing agencies and providers of credit
or insurance.Click
here for the text and brief description
of the New York State laws.

If
you are advocating for legislation that prohibits employers, occupational
licensing authorities, and/or other agencies from gaining access to and
using arrest records that never led to conviction, alerting grass roots
allies and supporters and asking them to contact their legislators to
support the legislation is an effective way to bring about change.Click
here for a model Action Alert
you can shape for your specific needs and use to seek grass roots support.

SAMPLE
LETTERS

Click
here for a model Sample Letter
you can send along with the Action Alert to help your grass roots supporters
write to their elected officials urging them to support legislation prohibiting
employers, occupational licensing authorities, and/or other agencies from
gaining access to and using arrest records that never led to conviction.
Once again you can shape this Sample Letter to meet your specific needs.